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2019 Supreme(Jhk) 140
IN THE HIGH COURT OF JHARKHAND AT RANCHI
ANANDA SEN, J.
Harendra Prasad Sinha Son of late Dhanesh Prasad Sinha - Petitioner
Versus
The Deputy Chief Labour Commissioner (Central), Ministry of Labour and Employment, Govt. of India & Ors. - Respondents
WP(S) No. 3549 of 2017
Decided On : 18-02-2019
For the Petitioner:Mr. Awnish Shankar, Advocate.
For the CCL :Mr. Amit Kumar Das, Advocate.
For UOI : Mr. Madan Prasad, C.G.C.
Headnote:
Payment of Gratuity Act, 1972 – Section 4 – Determination of the amount of gratuity – Petitioner, in this writ petition, has prayed for quashing the part of the order passed by respondent No. 1 in P.G. Appeal affirming the order passed by respondent No. 2 in P.G. Application whereby and whereunder, the prayer for determination of the amount of gratuity under the Payment of Gratuity Act, 1972 and issuance of direction upon the respondent No. 3 for paying the amount of gratuity to the petitioner has been rejected. – Held, Appellate authority under the Payment of Gratuity Act has misinterpreted the judgment of the Hon’ble Supreme Court in the case of Ravindranath Choubey (Supra) rather, paragraph 22 of the said Judgment would be applicable in the case and would fit on the facts also as admittedly, neither there was any departmental proceeding against the petitioner nor there was termination of services of the petitioner of the instant case. – Without there being any termination, forfeiture clause of payment of Gratuity Act will have no application. – Court hold that the views taken by the Controlling Authority as well as the Appellate Authority are not correct and cannot be sustained. – Court find that since there was no termination of service of the petitioner, the petitioner is entitled to receive the amount of Gratuity and the same cannot be withheld in terms of Section 4(6) of the Payment of Gratuity Act. – Impugned orders passed by the Controlling Authority in P.G. Application and the order of the Appellate Authority in P.G. Appeal are quashed and set aside holding that the petitioner is entitled to receive the amount of gratuity. – Writ Petition Allowed
The petitioner, in this writ petition, has prayed for quashing the part of the order dated 29.3.2017 passed by respondent No. 1 in P.G. Appeal No. (02)/2017-A-7 affirming the order dated 29.11.2016 passed by respondent No. 2 in P.G. Application No. 36(69)/2013, whereby and whereunder, the prayer for determination of the amount of gratuity under the Payment of Gratuity Act, 1972 and issuance of direction upon the respondent No. 3 for paying the amount of gratuity to the petitioner has been rejected.
2. The petitioner has claimed the payment of gratuity. The facts are admitted in this case.
3. The petitioner was appointed on 5.1.1976 in the Central Coalfields Limited (for short ‘CCL’). He superannuated on 30.4.2013, after attaining the age of 60 years from the post of Assistant Engineer (Civil). During his service tenure, a criminal case was instituted against him being R.C. Case No. 5(A)/1999(R) and he was charged for the offence under Sections 7/13(2)/13(1)(d) of the Prevention of Corruption Act. The criminal case culminated in conviction of the petitioner vide judgment dated 8.10.2013 passed by the learned Addl. Judicial Commissioner-XVII-cum-Special Court, CBI, Ranchi. The petitioner preferred a criminal appeal being Criminal Appeal (S.J.) No. 841 of 2013 before this Court, which is pending for final adjudication. The sentence of the petitioner has been suspended and he is on bail. The petitioner superannuated with effect from 30.4.2013. Admittedly there was no departmental proceeding pending against the petitioner as on the date of his superannuation. The petitioner made an application for payment of gratuity before the General Manager, CCL, which was not paid on the ground of pendency of criminal case. The petitioner, thereafter, applied before the Controlling Authority under the payment of Gratuity Act, 1972 cum-Assistant Labour Commissioner (Central), Hazaribagh for making payment of his gratuity, which was registered as Application No. 36/(69)/2013.
4. After hearing the parties, his application was dismissed on the ground that the petitioner is a convict in a case under the provision of Prevention of Corruption Act, thus, he is not entitled to get the amount of gratuity. Challenging the said order, the petitioner preferred an appeal before the Appellate Authority i.e. Deputy Chief Labour Commissioner (Central) Dhanbad, which was registered as P.G. Appeal No. (02)/2017-A.7. The Appellate Authority heard the appeal of the petitioner which affirmed the order passed by the Controlling Authority and held that if the appellant is acquitted by the High Court, he will be eligible to get gratuity along with 9% interest. Challenging the order of the Controlling Authority and the Appellate Authority under the Payment of Gratuity Act, this writ petition has been filed.
5. A counter affidavit has been filed by the CCL stating that the petitioner was convicted for committing the offence under Prevention of Corruption Act. It has also been mentioned that the conviction of the petitioner involves moral turpitude, thus he is not entitled to receive the amount of gratuity.
6. I have heard the counsel for the parties and perused the record.
7. The petitioner was an employee of M/s CCL and he superannuated with effect from 30.4.2013 on attaining the age of superannuation i.e. 60 years. Though a criminal case was initiated when he was in service, but no departmental proceeding was initiated against him. He was allowed to superannuate without initiation of any departmental proceeding. After his superannuation, he was convicted on 8.10.2013. The petitioner claimed gratuity as the same was not paid to him on the ground of conviction. The Controlling Authority under the Payment of Gratuity Act and the Appellate Authority turned down the claim of the petitioner holding that he is not entitled to get gratuity till the Criminal Appeal ends in acquittal. The petitioner relies upon the judgment of the Hon'ble Supreme court in the case of Jaswant Si
